People ex rel. Murphy v. Atchison, Topeka & Santa Fe Ry. Co.

Mr. Justice Wilkin delivered the opinion of the court: On November 4, 1904, the railroad committee of the city council, to which had been referred ordinance No. 2160, made its report, recommending “that the ordinance known as the track elevation ordinance be adopted,” and the chairman of the committee moved the adoption of the report. The vote was taken upon that motion, and, the city council consisting of fourteen members, eight votes were cast for and five against it, (one alderman being absent,) whereupon the mayor declared the motion carried and the ordinance adopted. About one-half of the population of the city is located east of the Chicago and Alton and Santa Fe tracks, and must pass over some of the above named streets in order to reach by direct travel the business part of the city, which is west of the tracks. The population is also about evenly divided by the Rock Island tracks, extending in a southwesterly direction. Beginning on the north, Benton, Webster, VanBuren and Marion streets and Third avenue will be each permanently and completely closed by the embankments on the Chicago and Alton and Atchison, Topeka and Santa Pe, and Collins and Joliet streets will be closed by the embankment on the Rock Island and Michigan Central, if constructed, absolutely preventing all travel on said streets for at least the distance of the width of the embankments, and practically on the ends of the said streets between the embankments and the next cross-streets. That is to say, those wishing to travel on either of those streets across the Chicago and Alton and Atchison, Topeka 'and Santa Pe tracks from the east to the business part of the city, must, upon reaching Eastern avenue, (the first north and south street east of the crossing,) turn either north or south on that avenue and proceed to one of the streets provided with a subway, and thence over that street through the sub-way to the next cross-street on the west, (which is Scott,) thence south or north back to the obstructed street, and on west to their destination. Otherwise expressed, we understand it to be admitted on behalf of the city and railroad companies that if the ordinance in question is carried out according to its terms and provisions by the erection of the proposed embankments without sub-ways at all of the said streets, it will permanently and completely prevent all public travel upon those streets; but their contention is, that because these obstructions can be avoided by diverting the travel over cross-streets to those having sub-ways there will not be a legal closing or obstructing of the streets at which no sub-ways are required to be constructed. It is settled by the frequent decisions of this court that a municipality holds its streets and alleys in trust for the benefit of the public, and cannot lawfully authorize the vacation or obstruction of any of them for the use and benefit of private individuals or corporations. The authorities on this proposition will be found cited in the late case of People v. Harris, 203 Ill. 272. The city council is given power, by statute, “to lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same.” (Hurd’s Stat. 1903, chap. 24, sec. 62, clause 7, p. 291.) Under the power to alter and widen streets, we have held they may reduce their width for the benefit of the public by vacating parts thereof. (City of Mt. Carmel v. Shaw, 155 Ill. 37.) Under the general supervisory power over their streets and alleys the city authorities may allow temporary obstructions of the same, so as to permit improvements thereon to be made or building materials to be temporarily stored for the erection of private buildings; and in the case of World’s Columbian Exposition Co. v. Brennan, 51 Ill. App. 128, it was held the city authorities might lawfully authorize the temporary closing of a street for the purpose of enabling the exposition company to perfect its improvements and in the interest of the public safety. In all cases, however, where the closing of public streets and alleys has been justified, the obstruction has been temporary and more or less for the public benefit or safety. Therefore none of the decisions above referred to directly affect the questions here involved, the contention on the part of the defendants being, that this is not an attempt to close the streets for the benefit of the railroad companies, but to compel them to elevate their tracks in the public interest, and incidentally authorizing them to obstruct the streets. The theory of the complainant’s bill is, that the permanent closing of the streets is, in part at least, for the benefit of those private corporations, and is not the mere exercise of the power of the city council to compel the elevation of railroad tracks; also, that the ordinance is, in effect, one to vacate public streets, and therefore not passed by the requisite statutory majority; and finally, that the city council has no power to completely and permanently close up its public streets and alleys by an ordinance passed by its city council by less than a three-fourths majority of all the aldermen elected in the city. The dispensing with grade crossings at public streets is an improvement certainly to be most earnestly desired, and the elevation of railroad tracks cannot be regarded as other than a wise precaution against the destruction of life and property. It may also be conceded that in carrying out a general plan to require railroad tracks to be elevated in a city like Joliet some'change in, or even the vacation or closing up of, some of the streets and alleys may become necessary in order to effectually carry out the scheme. We do not question the power of municipalities to order railroad companies within their corporate limits to elevate their tracks across all public streets and alleys, nor that they may not, in order to carry out that policy, authorize the vacation, closing or permanent obstruction of certain of its streets and alley's. The question here is, how must it be done? Has a bare majority of the city council power to do so by an ordinance passed by less than a three-fourths majority vote of the city council? It is provided by section I of chapter 145 (Hurd’s Stat. 1903, p. 1897,) “that no city council of any city * * * shall have power to vacate or close any street or alley, or any portion of the same, except upon a three-fourths majority of all the aldermen of the city * * * authorized by law to be elected; such vote to be taken by ayes and ñoes and entered on the record,” etc. It is insisted by the Attorney General that while ordinance No. 2160 does not, in terms, propose to vacate or close streets, such is its plain import and direct effect, and we have been unable to discover satisfactory answer to that contention. The law will look to the substance and not to" the mere form used in every such case. The city council can not be permitted to do indirectly that which it has no power to do directly. The substance is not to be lost sight of in the mere use of words. (Ligare v. City of Chicago, 139 Ill. 46.) The proposition is so reasonable that, unaided by authority, no court could hesitate to adopt it. That the effect of the ordinance in question is to practically vacate and close up the streets for which no sub-ways are provided admits of no doubt, nor is the fact disputed. In this connection we do not regard the question whether the title of the act quoted is bx;oad enough to include the word “close,” as at all material. Practically, to permanently close up a street is to vacate it. But suppose it be conceded that the ordinance is not to be construed as one to vacate parts of streets, the question still remains, has a city council power, even in the interest of the public safety, to authorize the permanent obstruction and vacation of its public streets and alleys without the requisite three-fourths majority of the city council ? We repeat, the power of the city council to do what is here attempted is not doubted, provided it is 'done by an ordinance legally passed by a three-fourths majority vote, but we hold that it can do so only by an ordinance legally passed, vacating the streets or parts of streets and alleys sought to be permanently closed up and vacated. While this bill, being by the Attorney General, need not show an injury to private rights, still it is material to consider whether private citizens, situated as those here complaining, have not such an interest in each of the public streets of the city as will authorize them to insist, through the State’s attorney or Attorney General, that the city council shall exercise the trust over the public streets and alleys reposed in it, for the benefit of all the people, and prevent, much less authorize, their permanent obstruction or vacation unless the statutory majority shall concur therein. Each alderman sustains a trust relation to the public over the streets and alleys of the city. Less than a three-fourths majority of them cannot perform that trust by allowing the streets to be vacated or permanently obstructed. The law has provided a method for the accomplishment of that which is here attempted,—that is, by the adoption of an ordinance vacating the parts of the streets obstructed. It cannot lawfully be done by a different and unauthorized method. The passage of ordinance No. 2160 by a bare majority vote of the aldermen of the city was an unauthorized attempt to invade the rights of the citizens of the municipality. It cannot be said in answer to this position that the city may at some time in the future cause the obstructions to be removed or sub-ways constructed in all the streets. The right to do this is reserved by the ordinance for the reason it is claimed that to do so is impracticable or impossible in view of the location of side-tracks on the present surface and the situation of various manufacturing establishments near the tracks. Some reliance seems to be placed by counsel for the de.fendants below upon the case of Summerfield v. City of Chicago, 197 Ill. 270, and the later case of Village of Winnetka v. Chicago and Milwaukee Electric Railway Co. 204 Ill. 297. We do not understand these cases to in any way support the contention of counsel. In neither of those cases was there a closing or obstruction of the entire street or a claim of right to do so, but in the Summerfield case only a small portion of the street was authorized to be used for the erection of walls to support the elevated structure, the railroad company agreeing to provide at its own expense, by condemnation of private property, a sufficient amount of ground to supply the place of the part taken, and the question there was whether a condemnation proceeding for that purpose could be maintained. The street remained open to public travel notwithstanding the use of a part of it for the erection of the walls, and the case was held to be within the rule announced in Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510. In the Winnetka case it was simply held that “the use of part of the street for street railway purposes is legitimate, and the municipal authorities, acting for the pub-lie, may_ authorize the construction of a viaduct for the tracks, even though it excludes the public to some extent from the use of that part of a street.” To change a street, even though in doing so the public is excluded to some extent from parts of the same, is a very different proposition from that of permanently closing up such a street. If the ordinance in question had provided that the streets for which no sub-ways are authorized should be changed so as to connect with those left open a different question would be presented. Each of the closed streets is left just as it was before,—a street of the city and yet not open to through or continuous travel. We have read with care and interest the argument of counsel on either side of this case and the opinion of the learned circuit judge denying the writ, and are constrained to hold against the conclusion there announced. If it should prove difficult or impracticable to obtain a three-fourths majority vote of the city council in the adoption of a proper ordinance, that fact, if it exists, cannot affect this decision. It may also be remarked that there is nothing to show that the elevation of the railroad tracks over most, if not all, of the streets could not be made without closing them, as was provided by the former ordinance. But that question cannot be of controlling importance now. If we are correct in the views herein expressed, a court of equity will grant the relief prayed. Revell v. People, 177 Ill. 468; Cobb v. Comrs. of Lincoln Park, 202 id. 427. The decree below will be reversed and the cause remanded to the circuit court, with directions to grant the prayer of plaintiff’s bill. Decree reversed.